Alabama Machinery & Supply Co. v. Roquemore, 3 Div. 498

• Court: Supreme Court of Alabama
• Citation: 205 Ala. 244,87 So. 435
• Decision Date: 20 January 1921
• Docket Number: 3 Div. 498
• Parties: ALABAMA MACHINERY & SUPPLY CO. v. ROQUEMORE.

87 So. 435

205 Ala. 244

ALABAMA MACHINERY & SUPPLY CO.
v.
ROQUEMORE.

3 Div. 498

Supreme Court of Alabama

January 20, 1921

Appeal from Circuit Court, Montgomery County; William L. Martin, Judge.

Detinue by the Alabama Machinery & Supply Company against H.L. Roquemore, as trustee in bankruptcy, for an elevator and fixtures. Judgment for the defendant, and plaintiff appeals. Affirmed.

Ball & Beckwith, of Montgomery, for appellant.

Hill, Hill, Whiting & Thomas, of Montgomery, for appellee.

THOMAS, J.

The action was in detinue for an electric elevator installed in defendant's storehouse by a tenant.

On July 6, 1912, the appellee leased to the George B. Wragg Furniture Company, a corporation, the premises in question for a term of five years, commencing October 1, 1912, at the annual rental stipulated. A material part of said lease is the following:

"It is further understood and agreed and a part of the consideration for which above store is leased and we hereby bind ourselves and agree to put in and install at our own expense an electric elevator at store No. 26 So. Court street. Said elevator to cost not less than $1,000.00, and is to be installed and put in operation on or before April 1 1913. If we fail to put in said elevator by said date, we hereby agree to pay monthly an additional rent of $16.65 per month from October 1, 1912, to the termination of this lease September 30, 1917."

This lease was subsequently renewed for a period of two years, which renewal contract was not in evidence; but it was proved by the appellee that the rental charge was increased, and that the contract contained no reference to an elevator.

On November 11, 1915, the appellant wrote a letter to the Wragg Company, offering to install an elevator in the premises. This proposal was accepted in writing on its margin by the Wragg Company, and was recorded in the probate office of Montgomery county on June 3, 1919. The appellant proved that this first proposal was not satisfactory to the Wragg Company, who insisted on specifications and terms, and that on November 27, 1915, appellant made a (second) proposal in great detail, which was also accepted in writing by the Wragg Company. Proposal No. 2 referred to proposal No. 1 for its terms of deferred payment, and stipulated that title to the elevator should remain in appellant until fully paid for. The two proposals were signed at about the same time, and were intended to constitute one contract. Proposal No. 2 was never recorded. The elevator was not installed until some time in 1917.

The appellee proved that at some time in [87 So. 436] 1915 the Wragg Company went into bankruptcy, and that she then claimed as rent something over $400 against the bankrupt estate, and when the elevator was installed in 1917, allowed this $400 as a credit on the rent. She further proved that she sued the Wragg Company in unlawful detainer at some time in 1919, and got possession of the premises on May 19, 1919; and that she sued on the notes for rent and obtained judgment on June 18, 1919, for $850; that this elevator was put in as a part of the consideration of the lease, and Wragg Company was to pay $1,600 per annum; that the elevator sued for (in this case) was never attached or levied on by the appellant.

The appellant's evidence tended to show that it never succeeded in satisfying the Wragg Company with the elevator; that payments were made from time to time in small amounts, but that at the time this action was commenced there was still due a balance of $562.14 of the original purchase price; that this sum was represented by 11 promissory notes, dated March 22, 1919, executed by the Wragg Company, payable in the event the elevator should be made satisfactory; that none of these notes were ever paid; that they contained a stipulation, retaining title in the appellant until all of them should be paid; and one of the notes was recorded in the probate office of Montgomery county on July 3, 1919. The appellant proved that on June 2, 1919, it wrote a letter to defendant's agent, demanding possession of the elevator; and the Wragg Company agreed upon a rescission of the elevator contract (July 10, 1919) after the termination of the lease. Appellant's counsel admits that--

"There are several conflicts in the testimony as to whether or not the appellee had notice of appellant's claim to the elevator, whether or not appellant had notice of appellee's possession of the premises, and whether or not the removal of the elevator would injure the premises."

We will first dispose of the several rulings on the introduction of evidence to which exceptions were reserved. The court did not err in sustaining defendant's objection to the question propounded to Mr. Fischesser:

"Has the title to this property passed out of the Alabama Machinery & Supply Company at any time?"

This was one of the issues to be tried, and the conclusion of fact was to be drawn by the judge sitting without a jury. McMillan v. Aiken, 88 So. 135; Miller v. Whittington, 202 ala. 406, 80 So. 499; Standard Cooperage Co. v. Dearman, 86 So. 537; Sovereign Camp W.O.W. v. Eastis, 89 So. 63.

The plaintiff's secretary and manager, Mr. Fischesser, who, as a witness in its behalf had testified that plaintiff had never "gotten the Wragg Company to accept the elevator, and the plaintiff itself did not think that it had complied with its contract until just before the paper was recorded in June, 1919," was asked by defendant:

"If you had not complied with your contract, tell us what was left undone that you think should have been done."

This was proper, on cross-examination, to test the knowledge of the witness of the fact of noncompliance of the contract by which the elevator was installed. Moreover, if it had been objectionable, no grounds of objection were assigned. B.R., L. & P. Co. v. Saxon, 179 Ala. 136, 59 So. 584; Rutledge v. Rowland, 161 Ala. 114, 49 So. 461; Adams Hdw. Co. v. Wimbish, 201 Ala. 547, 78 So. 901.

The rescission of the contract sought to be shown by plaintiff's letter of July 10, 1919, to George B. Wragg Furniture Company, and the written consent thereto by said Wragg Company (of same date), after the defendant landlord had paid Wragg Company for the elevator and after the latter had been evicted as a tenant and was a bankrupt, was immaterial evidence, and properly rejected by the trial court, on defendant's objection.

Plaintiff did not sufficiently assign grounds of objection to the question asked Mr. Stuart, a contractor of experience, as to elevators and their use or installation in buildings, and of the elevator in question as installed by the Wragg Company or plaintiff in defendant's...